By: Charles S. Wuest, Attorney at Law
The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
A lot of questions are asked about the lawsuits being brought regarding the flooding in the area and whether to join a class action or file one separately.
The general nature of the claims in these suits are negligence by governmental employees and eminent domain “taking of property”. Our State and Federal Constitutions prohibit the government from taking one’s property without fair compensation. The “taking” is basically premised on the decision(s) by the persons controlling the dams on reservoirs or area lakes to release increased flows from the dams which are alleged to have been too much, too late with little or no effort to space out the releases over the days preceding the landfall of Hurricane Harvey, thereby causing preventable flooding, damaging homes and businesses and loss of other personal property.
These suits fall into two general categories of either a class action or non-class action individual or multi-plaintiff suits. Class action suits are procedurally complex suits where the plaintiffs are members of a class of persons or entities similarly situated and with similar damages, and whether the suit is settled or tried to verdict, the class members share in the proceeds. There may be differing amounts recovered depending on whether there is simply one class or whether there are categories within the class which have been differently impacted such as total losses or partial losses.
The individual lawsuits may consist of one or more plaintiffs, but each plaintiff has more control over when or whether to settle out of court or present their case to a jury. While the multi-plaintiff suits may look like a class action which also has multiple plaintiffs, they are very different from the class actions. If the individual/multi-plaintiff case is tried to a jury and results in judgment for the plaintiffs, then the jury must determine each plaintiff’s damages, not just a lump sum to be split up by all the plaintiffs. This latter type lawsuit provides flexibility and decision-making to each individual plaintiff or business which is not found in the class action lawsuit.
Another aspect of disaster issues is the cleanup and rebuilding process. There are a lot of very good contractors out there working with victims to rebuild houses and businesses. However, in any disaster aftermath there are some who will take advantage of victims through, for example, overcharging, doing shoddy work or taking cash or checks for thousands of dollars and then disappear. You must be cautious and deliberate in who you hire and how you hire them. Research them through all means you have available, find out how long they have been doing the work you’re hiring them for; what kind of work do they usually focus on in their business and how close is that to what you are hiring for; can you obtain any independent referrals or recommendations about them; are they local or out of town; if out of town – check them out more carefully because if you end up in a dispute, you may have difficulty dealing with them after they leave here, (particularly if you must sue them); are they listed with the Better Business Bureau; are they properly licensed for what you are hiring them to do, will they hire properly licensed subcontract trades such as electrical or plumbing work on your home or office, and are they insured.
You should also require written estimates and a written contract from anyone you hire for major repair or reconstruction work. Insist on a written contract which should specifically describe what they are doing, how the components or stages of reconstruction are priced, warranties on their work, timeline for the work to start and for completion and how will substantial completion be determined and by whom. Read the contract carefully and preferably have it reviewed by an attorney knowledgeable in residential construction or commercial construction, as the case may be. Also require a provision which requires the contractor to provide you with a notarized waiver and release of all liens and an All Bills Paid affidavit on the conclusion of the work and at the time of final payment.
By being careful, questioning and diligent in your selection of contractors, you can significantly reduce the risk of being taken advantage of and increase the likelihood you will move through your rebuilding process with a positive result.
© 2017 Charles S. Wuest
Charles S. Wuest is admitted to practice before all Texas and Arkansas courts and the Federal Courts for the Southern, Northern, and Western Districts of Texas, the Fifth and Eighth Circuits Courts of Appeals, the United States Court of Federal Claims and the United States Tax Court. He has been practicing law for over 36 years and concentrates his practice in business and estate litigation. Mr. Wuest is a Member of the law firm, Currin, Wuest, Mielke, Paul & Knapp, PLLC (“CWMPK”) at 800 Rockmead Drive, Suite 220, Kingwood, Texas. Besides the areas in which Mr. Wuest practices, other attorneys at CWMPK concentrate their practice in areas of estate planning, probate, family law (including divorce and custody issues), business operations and formation, commercial collections, employment law, bankruptcy, immigration, construction and real estate. For more information, please call 281.359.0100 or see the CWMPK website at www.cwmpk.com. We are a debt relief agency. We help people file for relief under the Bankruptcy Code.